Citation NR: 9736867
Decision Date: 10/31/97 Archive Date: 11/05/97
DOCKET NO. 93-24 742 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee,
Wisconsin
THE ISSUE
Entitlement to an increased evaluation for a chronic low back
syndrome, currently evaluated as 40 percent disabling.
REPRESENTATION
Appellant represented by: Wisconsin Department of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
B.E. Jordan, Associate Counsel
INTRODUCTION
The veteran had active military service from January 1969 to
August 1970.
This appeal to the Board of Veterans' Appeals (Board) arises
from a rating decision of the Department of Veterans Affairs
(VA) Regional Office (RO) in Milwaukee, Wisconsin. In
December 1996, the Board remanded this matter to the RO for
further development. As such, the Board is satisfied that
the RO has complied with the remand directives.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that his back disability is
more disabling than currently evaluated. Specifically, he
maintains that he experiences chronic back pain which
radiates in both legs and causes numbness, muscle spasm,
stiffness, and restricted motion.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that
the preponderance of the evidence is against the claim for an
increased evaluation in excess of 40 percent for a chronic
low back syndrome.
FINDINGS OF FACT
1. All the relevant evidence necessary for an equitable
disposition of the appeal has been obtained.
2. The veteran’s chronic low back syndrome is manifested by
tenderness in the lumbosacral area, severe limitation of
motion accompanied by complaints of pain, functional
limitations, fatigue, and incoordination, but is no more than
severely disabling.
3. No unusual or exceptional disability factors have been
presented with respect to the veteran's service-connected
chronic low back syndrome.
CONCLUSION OF LAW
The criteria for an increased evaluation in excess of 40
percent for a chronic low back syndrome have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Code
5295 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As a preliminary matter, the Board finds that the veteran's
claim is plausible and thus well grounded within the meaning
of 38 U.S.C.A. § 5107(a); see Drosky v. Brown, 10 Vet.
App. 251, 245 (1997) (citing Proscelle v. Derwinski, 2
Vet.App. 629, 631-32 (1992) (a claim of entitlement to an
increased evaluation for a service-connected disability
generally is a well-grounded claim)). The Board is satisfied
that all relevant evidence has been obtained with respect to
this claim and that no further assistance to the veteran is
required in order to comply with the duty to assist mandated
by statute.
In accordance with 38 C.F.R. §§ 4.1, 4.2 (1994) and Schafrath
v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed
the veteran's service medical records and all other evidence
of record pertaining to the history of the veteran's service
connected low back disability and has found nothing in the
historical record that would lead to a conclusion that the
current evidence of record is not adequate for rating
purposes. Moreover, the Board is of the opinion that this
case presents no evidentiary considerations that would
warrant an exposition of the remote clinical histories and
findings pertaining to the disability at issue. See
Francisco v. Brown, 7 Vet.App. 55 (1994) (where an increase
in a disability rating is at issue, the current level of
disability is of primary concern).
The veteran was service connected for back strain in a March
1971 rating decision pursuant to 38 C.F.R. § 4.71a,
Diagnostic Code 5295. A 10 percent evaluation was assigned,
effective in December 1970. The RO increased the veteran’s
low back disability evaluation to 20 percent in December
1984. That evaluation was made effective in February 1984.
When seen by VA in May 1989, the veteran complained of back
problems. It was noted that the veteran performed seasonal
work as a truck driver and that he had missed 30 days of work
within the past seven months. The veteran stated that truck
driving was the only occupation that he could tolerate
because it enabled him to move around when necessary. The
veteran further related that he could not sit or stand for
long periods of time. On physical examination, he
demonstrated pain in the middle of his lower back and
indicated that the pain sometimes radiated upward. The
neurological examination was negative distally. Forward
flexion of the lumbar spine was to 40 degrees; right and left
flexion were to 30 degrees, bilaterally. Backward extension
was to 30 degrees. Pain was noted with all motion. He also
exhibited tenderness to palpation in the lumbosacral area
without any paraspinal tenderness. X-rays associated with
the examination revealed a normal lumbar spine and spina
bifida occulta of the first sacral segment. The diagnoses
were low back syndrome and spina bifida occulta of the first
sacral segment.
The record includes private medical documents dating from
July 1990 to February 1992. In July 1990, it was recorded
that while the veteran was lifting and tossing some tires
into a truck he experienced an acute onset of right sided
neck and back pain. It was also noted that he had a previous
history of low back pain. Burning in the back and anterior
portions of the legs were also recorded. Clinical findings
included spasm in the right sided trapezius and the
paraspinal muscles. Straight leg raises were negative.
Reflexes were 2/4 in the upper and lower extremities. Motor
strength was 5/5 in the upper and lower extremities.
However, the veteran exhibited good lumbar flexion. The
diagnoses included muscle strain and back strain (overuse
syndrome). On physical examination in October 1990, forward
flexion of the lower back was to one-half the normal
position; however, back extension was normal. In the supine
position, straight leg raises were to 30 degrees,
bilaterally. Faber’s sign was positive to the left and
right. The veteran indicated that his low back disability
was primarily unchanged, although he demonstrated stiffness
in the lower back. The examiner assessed the veteran as
having chronic low back pain; he further indicated that the
majority of the veteran’s problems were associated with his
cervical spine and shoulders.
In April 1991, the diagnostic impression was possible lateral
recess with occult radiculopathy in the cervical and lumbar
regions. It was also noted that the veteran had attempted to
return to work as a driver. Because he continued to
experience muscle spasm, aching and pain in the arms,
posterior neck, shoulders, and buttock area, the veteran
could not continue working. An April 1991, computed
tomography (CT) revealed minor bulging of the annulus at the
L4-5 levels without evidence of neural compression. However,
May 1991 CT and magnetic resonance imaging (MRI) of the
lumbar spine were essentially normal demonstrating no
evidence of disc herniation or nerve root entrapment or intra
or extra dural mass lesion.
The report of an August 1991 evaluation discloses that the
veteran was seen primarily for disabilities unrelated to that
at issue. It was noted that the July 1990 injury did not
affect the veteran’s low back. However, the veteran
described low back pain (particularly on defecation),
numbness in the buttocks on prolonged sitting, and numbness
in the feet on prolonged standing. On physical examination,
lumbar lordosis was lost. Simulation testing revealed that
the veteran could push and pull a 120 pound friction sled
with complaints of intermittent pain. However, he was able
to push and pull 80 pounds with less pain. He lifted 10
pounds overhead with both hands, but complained of severe
neck pain and a headache. The summary and diagnostic
assessment included 1969 low back injury with continued pain,
minor degenerative changes, no disc herniations. It was
noted that the veteran could return to work with certain
restrictions. He was restricted from engaging in activities
that involved flexion or rotation of the neck, bouncing
caused by travel in motor vehicles, overhead work, and
lifting over 10 to 20 pounds on a regular basis. However, it
was noted that the veteran could push and pull 100 to 150
pounds on wheels with ease.
When seen by VA in August 1991, the veteran related
complaints regarding his back. He stated that when he lifted
some tires in July 1990, he reinjured his back and had been
unable able to work since that time. On physical
examination, it was recorded that the veteran rose slowly
from the chair, walked with a slow gait, and grunted and
groaned. His low back demonstrated muscle spasm in the
lumbar area, but there was no pelvic tilt. Forward flexion
of the lumbar spine was to 30 degrees; backward extension was
to 10 degrees; side flexion was to 10 degrees, and rotation
was to 20 degrees. On rotation, he complained of mid-low
back pain around the L5-S1 area. The veteran was able to
kneel on the chair. Ankle reflexes and deep tendon reflexes
were 2 plus, and the toes were downgoing. There were no
sensory deficits in the lower extremities. Straight leg
raises in the sitting position were 60 degrees bilaterally.
The veteran complained of sudden knee jerk when his knees
were examined in the straight leg posture. Supine straight
leg raises were to 30 degrees, bilaterally. Hoover’s test
was positive, e.g., there was no pressure on the opposite
heel as maximal effort was not initiated. It was also noted
that the veteran sighed and groaned during the entire
examination. The diagnostic assessment included status post
low back trauma and chronic pain syndrome. The examiner
opined that the discrepancies between the straight leg raises
in the supine and sitting positions suggested that there were
some functional elements, that the veteran had definite
muscle spasm in the lumbar area, and that there was chronic
low back syndrome with intermittent, recurrent, or constant
discomfort. However, X-ray studies revealed a normal lumbar
spine.
The report of a July 1993 VA compensation and pension
examination reveals, in pertinent part, that the veteran
complained of increased back pain. He added that the pain
had been so debilitating that he could not work. The veteran
further related that he felt sharp pain with all movements
including standing and sitting. He also related that the
pain was localized over the entire spine and left shoulder
and radiated down his legs. He indicated that nothing
alleviated the pain. He also noted numbness in the hands,
feet, and legs, right arm weakness, and muscle weakness. The
veteran stated that his legs had given out on him on a number
of occasions causing him to fall. On physical examination,
forward flexion of the lumbar spine was to 30 or 35 degrees;
back extension was to 10 degrees, and right and left flexion
were to 10 degrees, bilaterally. Severe diffuse pain to
palpations from the cervical to the lumbar sacral region were
noted. His deep tendon reflexes and extremities were 2 plus
at the knee and 2 plus at the ankle, and the toes were
downgoing. The examiner noted that pain prevented him from
assessing the veteran’s muscle strength in the lower
extremities, however, he recorded that muscle groups appeared
to be symmetrical and that there appeared to be 4/5 muscle
strength in all muscle groups on flexion and extension.
Sensory was intact in the lower extremities to light touch.
With regard to the upper extremities, bicep strength was
minus 4 and triceps strength was 4 plus on the right, but 5
on the left. The veteran exhibited a marked decrease to
pinprick on the right upper extremity from the shoulder to
the elbow with about a 50 percent reduction subjectively.
The diagnostic impression was traumatic back injury with
evidence of MRI disk herniation, evidence of neurologic
damage with weakness and sensory loss in the right arm,
chronic pain from the veteran’s spinal injuries that the may
represent degenerative arthritis.
In June 1993, the veteran testified at a personal hearing
regarding his low back disability before a hearing officer.
At the hearing, the veteran complained of pain in his entire
back which radiated into both legs and caused numbness. He
also related having experienced muscle spasm, stiffness, and
restricted motion in the lower back. Additional complaints
included pain on urination and defecation. The appellant
testified that he was not currently undergoing any treatment;
however, he stated that he had taken Motrin in the past. As
to employment, the veteran indicated that he had not worked
since July 1990.
In June 1996, the veteran underwent a VA orthopedic and
neurological evaluation. At that time, he related that he
experienced constant back pain and rated it as 10 on a scale
of 1 to 10. On physical examination, the entire spine and
paraspinal muscles, particularly in the lumbosacral region,
were tender. His back motion was slightly limited, and he
could only reach to within 10 inches of the floor. While
sitting, straight leg raises were normal; however, in the
supine position, they measured as 40 degrees on the left and
30 degrees on the right. He had tight hamstrings. There was
no sensory deficit or weakness. The veteran was able to
stand on his toes and his heels. The examiner determined
that the veteran’s back problems were mostly myofascial in
nature, with no objective evidence of a neurological deficit.
During the neurological examination, the veteran stated that
his legs occasionally became numb. It was noted that he
moaned often during the examination. His gait was
intermittently normal and then limping. Muscle strength was
normal in the legs, and no fasciculations or atrophy was
found in the legs. The sensory examination of the legs was
normal. Forward flexion of the lumbar spine was to 70
degrees with complaints of low back pain. The veteran could
deep knee bend about half way down before complaining of low
back pain. He demonstrated paravertebral tightness from the
neck down to his low back. When distracted, however, he
exhibited muscle tightness which dissipated upon distraction.
The examiner noted that such behavior suggested voluntary
splinting. The veteran was diffusely tender along the low
back, but there was no point tenderness to palpation of the
sacroiliac joint or sciatic notch on either side. Patrick’s
maneuver caused complaints of pain in the low back,
bilaterally. In sum, the neurologic examination was normal.
After reviewing the veteran’s file, the neurologist opined
that the veteran did not have an organic difficulty causing
his back pain and noted that “myofascial pain” meant that the
veteran had complaints of aches and pains without there being
a medical diagnosis based on organic or pathological
findings.
In an August 1996 rating decision, the RO, after considering
the accumulated evidence of record, increased the disability
evaluation for the veteran’s low back disability
(recharacterized as a chronic low back syndrome) to 40
percent, effective July 1990. As the basis of that
determination, the RO stated that there was some obvious
discrepancy in the exact cause of the veteran’s back pain and
that it had been demonstrated on numerous occasions that he
experienced such pain and that the pain was primarily
manifested by limitation of motion and tenderness.
Pursuant to the December 1996 remand, the veteran was
afforded a VA compensation and pension examination in April
1997. The report of that examination reveals, in pertinent
part, that the veteran had not worked since July 1990.
However, it was noted that he purchased a taxidermy shop in
April 1997. The veteran related that he worked the shop
about 3 or 4 hours per day on a good day. With regard to
pain, the veteran indicated that he experienced constant back
pain which he rated as 8 to 10 on a scale of 1 to 10. He
added that increased activity aggravated his symptoms and
that his drive to the examination was fatiguing. Additional
complaints consisted of occasional numbness in the legs which
caused him to fall. The appellant stated that the symptoms
associated with his back disability have adversely affected
his recreational activities such as hunting, fishing, and
motorcycling. He added that he was unable to mow the lawn,
that he did not do work around his home, and that he required
assistance getting in and out of his bed.
On physical examination, the veteran complained of pain
stemming from the upper sacral area to the lower cervical
area. He walked slowly with the thoracic and cervical spines
flexed. It was recorded that the veteran moaned and groaned
upon walking and removing and putting on the clothes during
the examination. In addition, the veteran indicated that
removing and putting on his clothes was fatiguing. He
exhibited difficulty getting on and off the examination
table. He could stand on his heels and toes. Palpation of
the spine revealed muscle tension in the lumbar spine that
relented with distraction. There was marked overreaction to
palpation with grimacing and moaning over palpation over the
entire spine; however, such responses were reduced and
eliminated with distraction. Jerky overreaction on the range
of motion examination was recorded. The examiner noted that
compression on the skull and in the shoulders markedly
aggravated the veteran’s low back and neck pain and produced
overreaction. Forward flexion of the lumbar spine was to 30
degrees; this was done in a slow and deliberate fashion.
Backward extension was to 5 degrees with overreaction; left
and right lateral bending were to 15 degrees, bilaterally.
Straight leg raises were normal in the sitting position. In
the supine position, straight leg raises caused low back pain
at 45 degrees on the left and 20 degrees on the right. Motor
strength in the lower extremities was within normal limits.
Deep tendon reflexes were bilaterally symmetrical in the
upper and lower extremities. X-rays of the lumbar spine
associated with the examination were normal. The diagnostic
impression included history of low back strain with mild
fascial pain syndrome and marked functional component to pain
complaint.
The examiner further related that the veteran demonstrated a
significant amount of pain to touch and pressure and
exhibited overreaction, grimacing, flinching and muscle spasm
in response thereto. It was noted that the muscle spasm
could be eliminated by distraction. However, the examiner
opined that the veteran’s complaints represented a functional
problem although the veteran exhibited easy fatigability and
incoordination, amongst other things. The examiner added
that the veteran’s pain limited his functional ability at all
times and it is somewhat worse during flare-ups. A precise
percentage could not be assessed because of the extreme easy
fatigability, pains, and limitation of motion on a daily
basis. He also stated that it was difficult to determine the
exact contribution of the service-connected low back strain
in that the veteran’s back was hurting at the time of the
evaluation. With regard to the veteran’s employability, the
examiner indicated that the veteran’s major problems stemmed
from his post traumatic stress disorder and functional
component to his pain complaints. The examiner further
indicated that he felt that veteran’s complaints of were of
such a nature that they effect restrictions on all fields of
labor. With regard to the veteran’s taxidermy business, the
examiner indicated that the veteran would require assistance
with heavier lifting. It was further noted that the veteran
was not taking any medication for his back, neck, or right
shoulder pain, except aspirin. However, the veteran
occasionally used a TENS unit.
Under the laws administered by the VA, disability ratings are
determined by applying the criteria set forth in the VA
Schedule for Rating Disabilities (Rating Schedule), found in
38 C.F.R. Part 4. The Board attempts to determine the extent
to which the veteran's service-connected disability adversely
affects his ability to function under the ordinary conditions
of daily life, and the assigned rating is based, as far as
practicable, upon the average impairment of earning capacity
in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38
C.F.R. §§ 4.1, 4.10 (1996).
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the system,
to perform the normal working movements of the body with
normal excursion, strength, speed, coordination and
endurance. The regulation further provides that examinations
on which ratings are based must reflect the anatomical damage
and functional loss with respect to all these elements.
Functional loss may be attributed to several factors, one of
which is pain, supported by adequate pathology and evidenced
by the visible behavior of the claimant; weakness is as
important as limitation of motion, and a part that becomes
painful on use must be regarded as seriously disabled.
38 C.F.R. § 4.40 (1996). As regards the joints the factors
of disability reside in reductions of their normal excursion
of movements in different planes. Inquiry will be directed,
but not limited to, excess fatigability, pain on movement,
swelling, deformity, or atrophy of disuse. Instability of
station, disturbance of locomotion, interference with
sitting, standing and weight bearing are related
considerations. 38 C.F.R. § 4.45 (1996).
In the instant case, the veteran’s service-connected back
disability, characterized as chronic low back syndrome, is
rated currently under 38 C.F.R. § 4.71a, Diagnostic Code
5295. Under this regulatory provision, a 40 percent rating
is for application when the back disability is severe as
manifested by listing of the whole spine of the opposite
side, a positive Goldwaite’s sign, marked limitation of
forward bending in a standing position, loss of lateral
motion with osteoarthritic changes, or narrowing or
irregularity of the joint space. A 40 percent evaluation is
also warranted if only some of these manifestations are
present if there is also abnormal mobility on forced motion.
Id. A 40 percent rating is the highest schedular evaluation
assignable under Diagnostic Code 5295.
Pursuant to Diagnostic Code 5293, a 40 percent evaluation is
warranted for severe intervertebral disc syndrome with
recurring attacks with intermittent relief. A 60 percent
evaluation requires pronounced intervertebral disc syndrome
as demonstrated by persistent symptoms compatible with
sciatic neuropathy (i.e., with characteristic pain and
demonstrable muscle spasm and an absent ankle jerk or other
neurological findings appropriate site of the diseased disc)
and with little intermittent relief. 38 C.F.R. § 4.71a.
Under Diagnostic Code 5289, unfavorable ankylosis warrants a
50 percent evaluation, whereas favorable ankylosis of the
lumbar spine warrants a 40 percent evaluation, whereas. A 40
percent evaluation is warranted under Diagnostic Code 5292
for severe limitation of motion of the lumbar segment of the
spine. 38 C.F.R. § 4.71a.
The Board finds that the evidence does not support an
increase in compensation benefits to the next higher
evaluation. The veteran’s low back disability is essentially
manifested by tenderness in the lumbosacral area, severe
limitation of motion accompanied by complaints of pain,
audible discomfort illicited with standing and dressing and
undressing, and without any neurological involvement being
shown on the most recent VA examination. The Board notes
that the medical evidence shows and the veteran testified
that his back disability is primarily manifested by increased
pain, which the veteran has been experiencing for several
years. While 1990 to 1993 diagnostic assessments include
chronic low back pain, 1996 examiners determined that
veteran’s complaints of pain aches are based on medical
diagnoses not supported by organic or pathological findings.
Although the April 1997 examiner indicated that most of the
veteran’s symptoms were functional, the veteran exhibited
easy fatigue and incoordination. Thus, given these factors,
particularly those which indicate severe functional loss due
to pain, the Board is of the opinion that the pathology
associated with the veteran’s chronic low back syndrome is
most appropriately rated at the 40 percent evaluation under
Diagnostic Code 5295. See DeLuca v. Brown, 8 Vet. App. 202,
207 (1995); 38 C.F.R. §§ 4.21, 4.40, and 4.45. See also
Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997).
Accordingly, an increased rating is not warranted.
While the veteran has voiced subjective complaints of
radiating back pain and numbness and tingling sensations in
the lower extremities, clinical studies are negative for
objective findings of neurological involvement as evidenced
by the June 1996 and April 1997 VA examinations. In the
absence of pronounced intervertebral disc syndrome, the
veteran is not entitled a higher disability rating pursuant
to Diagnostic Code 5293. Furthermore, the evidence does not
evidence is does not establish that the veteran’s low back
disability is manifested by ankylosis; therefore, Diagnostic
Code 5289 is not for application in this matter.
Furthermore, the evidence of record, taken as a whole, does
not demonstrate symptomatology that equals, or more nearly
equals, the criteria required for the next higher evaluation.
38 C.F.R. § 4.7.
Moreover, the symptomatology attributable to the service-
connected low back disability does not show such an
exceptional or unusual disability picture as to render
impractical the application of the regular scheduler
standards and thus warrant assignment of an extraschedular
evaluation under 38 C.F.R. § 3.321(b)(1). The veteran has
not required frequent periods of hospitalization for his
service-connected disability. The Board notes that in 1990
the veteran incurred an injury while working; however, July
1990 private medical records show that the injury did not
affect the veteran’s low back. Although April 1991 private
medical records disclose that the veteran was not able to
return to his work, the evidence does not establish that his
low back disability was a factor. While the April 1997 VA
examiner indicated that the veteran’s functional impairment
restricted the veteran’s employability, it was also indicated
that the veteran was operating a taxidermy business. As
such, the evidence does not show that the service-connected
disability has resulted in the marked interference with
employment contemplated by 38 C.F.R. § 3.321(b)(1). Thus,
contrary to the veteran’s allegations, the record does not
present an exceptional case where his currently assigned 40
percent evaluation is found to be inadequate. See Moyer v.
Derwinski, 2 Vet. App. 289, 293 (1992); see also Van Hoose v.
Brown, 4 Vet. App. 361, 363 (1993) (noting that the
disability rating itself is recognition that industrial
capabilities are impaired). Accordingly, in the absence of
such factors, the Board determines that the criteria for
submission for assignment of an extraschedular rating
pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell
v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet.
App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 281,
227 (1995).
ORDER
An increased evaluation for a chronic low back syndrome is
denied.
DEBORAH W. SINGLETON
Acting Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1997) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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